Using Mediation in Your Lawsuit

A lawsuit can be a stressful situation, but there are ways to make the process a bit easier on yourself. By using a mediator you have a neutral party who does the negotiating and back-and-forth for you, at a fraction of the cost of actually going to court. In this guide, we look at how mediation works, what the mediator does, and give the pros and cons of going the mediation route.

What Is Mediation?

Mediation puts a third party in the middle of someone else’s dispute or conflict to help the original parties solve their problem. If you think about it, that’s sort of like what a court does: puts a third party—a judge or a jury—in the middle of the plaintiff and defendant’s conflict, so that the judge or jury can solve the problem. The big difference between what a court does and what mediation does is that the court solves the problem for the parties; mediation helps the parties solve the problem for themselves.

The big focus in mediation is in helping the parties come to a compromise. Both sides have to be willing to move from their original positions in order for mediation to work. Even if the parties aren’t willing to shift at first, sometimes the process of mediation can help people see the advantages to changing their position.

Often, mediation is a good next step to offer as part of a negotiation. It can help people feel that the dispute is being taken seriously. It can also help to bring some perspective to the problem by allowing a fair third party to make suggestions and help each party see the way the land lies.

How Does Mediation Work?

The way mediation works varies depending on the style of the mediator, or the person providing the mediation service. One of the most common ways for a mediation session to work is for both parties to get together with the mediator at a neutral place. This might be the mediator’s office, a public facility like a library meeting room, or a courthouse meeting room. The mediator will ask each side to tell his story, often starting with the person who’s sort of in the plaintiff’s position, having brought the problem up. That person tells his side of the story, without interruption. The mediator might repeat back the main points of the story to make sure he’s got them right. Then the other person tells her side of the story. Again, the mediator might repeat the main points of the story to be sure he’s clear on them.

At this point, techniques vary. Some mediators will keep both parties in the room and start suggesting solutions to see how the parties react. Others will ask one side to leave the room so the mediator can speak privately to one side to suggest a solution. The mediator will then ask the first person to leave and ask the second person to come back in, and suggest the same solution to that person. Some mediators put the parties in two separate rooms, and go back and forth between the rooms themselves.

Why Is Mediation Better Than Negotiation?

Mediation sometimes works better than plain negotiation because the mediator is neutral. The mediator doesn’t get angry, doesn’t get offended, and doesn’t have any real interest in the case, other than helping to try to resolve it. Because the mediator has no emotional involvement in the process, it’s easier for him to focus on solving the problem. When one party expresses anger over a suggested solution, the mediator doesn’t get angry back or make the new solution even tougher. He just waits until the anger blows itself out, gets the actual response from the person, and moves on.

Mediation can also work better than ordinary negotiation because sometimes the parties both want to resolve an issue, but their own personal issues make it too difficult to try to settle the case. All they really need is some help. For example, the parties may be so angry at each other that they can’t even be in the same room together. However, if the mediator uses the technique of keeping the parties apart during the process, the anger each party naturally feels and expresses doesn’t end up creating a sort of loop, each feeding the other party’s anger.

How Does the Mediator Work?

When the mediator makes a suggestion that one party agrees to, he checks with the other party to see if he can get them to agree to the same thing. If he can’t, he asks what needs to change for an agreement to happen. This goes on, back and forth, until an agreement is reached. There’s no telling how long this will take, as it depends on the individual parties.

Sometimes the parties cannot come to an agreement. No matter how good the mediator is, if one side absolutely refuses to give an inch, there can’t be a fair resolution. Even if you think the other side isn’t going to give a quarter of an inch, much less an inch, mediation is worthwhile if only to get a feeling for how the other side is thinking. The other side may accept bits and pieces that never seemed possible, or they may even agree to end the entire dispute. You’ll never know unless you try!

What you get at the end of a successful mediation process is an agreement. This agreement is basically a contract, which you should write out clearly, including consequences for either side’s violation of the contract. You might want to use an attorney to write up the contract to conclude the mediation, or you might let the mediator write up the agreement. Double-check the agreement to make sure it reflects your understanding of what you agreed to throughout the mediation. Don’t sign it unless it’s exactly what you wanted. It’s okay if that throws you into another round of mediation! Better to be clear that you’re getting what you agreed to than to be stuck with something that doesn’t solve the problem to your satisfaction.

What Are the Pros and Cons of Mediation?

Mediation is almost all upside and next to no downside. When mediation works, it’s very cheap and very fast. Your problem is solved and you can move on with your life. You avoid the costs of litigation and save a great deal of time and stress. What could be better than that?

Mediation also enables you to work with the other side to create your own solution, rather than having a solution imposed on you from the outside. This gives you more control over the final decision than what you would have in arbitration or the courts. If it’s done right, and both sides feel they came to a fair agreement, people often stick to the decision made through mediation better than they do to an outside decision, like one made through arbitration or the courts.

The downside comes when mediation doesn’t solve your problem. The time you thought you’d save through mediation was instead wasted, because you still have a problem that will take still more time to solve. Whatever money you spent on mediation, such as any fees charged by the mediation service or the mediator, now gets added to the money this problem is costing you. Worse than that, though, is that through mediation, you might have revealed more about your position and strategies than you wanted to in an effort to reach an agreement. That might make later negotiation more difficult.

Can I Still Sue If This Doesn’t Work Out?

The best thing about mediation, regardless of whether it’s traditional voluntary mediation or court-ordered mediation or case evaluation, is that you absolutely can continue on with a lawsuit if the mediation doesn’t work out. Remember that this isn’t true for mediation with binding arbitration, but otherwise, the courts are open to you after an unsuccessful attempt at mediation.

Lawsuits are never an enjoyable endeavor, but with the help of mediation, they can go smoother and faster. Good luck!

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